Bill C-46: Records Applications Post-Mills,
A Caselaw Review

The Department of Justice Canada has in the past twenty years undertaken extensive research in the area of sexual assault law.[187] Much of this research has been based upon the very significant changes in the Criminal Code and resulting caselaw. The perspectives of all players, including complainants themselves, have been sought during various studies. Some issues arose during the course of this review that would bear further examination if resources were available.

First of all, it would be ideal to update this caselaw review so that it is relatively current (i.e., within two years). As well, the issue of cross-examination of the complainant on records at the preliminary inquiry could be monitored to determine whether or not it is becoming a "battleground" as suggested by one author. The issue of costs, which was not prevalent, but very important, could also be monitored. Finally, it could be beneficial to gain insight into the potential role for independent counsel, or indeed, of advocates in general, who assist complainants through the sexual assault trial. Questions to be explored would be the impact on anxiety levels and safety fears if a complainant had an independent counsel/advocate there on her or his behalf.

While the legislation provides a procedure for challenging myths and stereotypes around sexual assault along with some protections for the privacy of the complainant, it is only one tool. Education and awareness-raising are equally important tools that need to be employed. Whether it is training for criminal justice personnel, awareness campaigns for the general public, or targeted education for complainants around expectations of the criminal justice system, all serve an important role to challenge myths and change attitudes.

The title of Mohr's study highlights the importance of education – "Words Are Not Enough: Sexual Assault – Legislation, Education and Information." Most of the key informants noted that they had received little or no training after the passing of both Bill C-49 and C-46, but some judges commented that more training had been available on Bill C-49. There was a general agreement that there should be refresher courses for on all aspects of sexual assault law every couple years. Defence counsel reported many workshops and on-going training. Overall, more training for criminal justice personnel was recommended by a number of key informants.[188]

Given the breadth of changes in sexual assault law in Canada over the past twenty years, a recommendation for on-going training and education appears reasonable. The general public also could benefit from awareness campaigns, such as those regarding domestic family violence and most recently, trafficking of persons. It is the general public who will sit on juries to judge the accused. As well, complainants or potential complainants could surely benefit from targeted education strategies that focus on not only information about the criminal justice system, but their own expectations and what is realistic. Format and delivery of this education must be sensitive to the individual needs of the complainants at different points after the assault. Trauma does have an impact on learning.[189]

This caselaw review examined decisions from records applications during the time period of December 1, 1999, to June 30, 2003, obtained from the QuickLaw database. It provides general and specific information on case characteristics and reasons in decisions in s.278.1 cases, including : relationship between defendant and complainant; types of records sought; nature of the offence; rationales offered for disclosure; and identification of judicial commentary on the provisions. A total of 48 cases were reviewed from all jurisdictions except Quebec, Nunavut and Prince Edward Island where no cases were reported. The decisions reviewed are those readily available as precedent to counsel, and as such, the research does provide some insight on trends in this area.

This report began with background on the development of Bill C-46 and the case of R. v. Mills wherein Bill C-46 was upheld as constitutional. A brief discussion of the significant literature generated on the issue of third party records was included to highlight some of the debates, and indeed, the conflicting and multidisciplinary perspectives.

The findings of the review are consistent with those of previous studies. In a majority of cases, there was a relationship between complainant and defendant (familial, professional); the majority of defendants were male while complainants were female; complainants were young; multiple records were sought; and records were ordered disclosed/produced to the defence in approximately 35% of the cases reviewed. No definitive trends in terms of reasons could be discerned from the review, with the exception of a greater emphasis on privacy of complainants.

This review provides a specific tool with which to monitor trends in jurisprudence. Such monitoring is important to determine whether legislative provisions are working in the manner intended by Parliament. Given the many changes in sexual assault law in Canada over the past twenty years, such research plays an important role to inform policy at the Department of Justice. It will be important to continue research in this area as time passes.

[189] See for example, J. Hill, "Cognitive Changes in Victims of Crime: A Review of the Literature" (Research and Statistics Division and Policy Centre for Victim Issues, Department of Justice Canada, 2003) who examines recent social science research on the cognitive changes in victims of crime; S. McDonald, "Learning about the Law: Immigrant Women, Violence and Rights" (2002), The Canadian Journal for the Study of Adult Education, 16,2:73-94, who looks closely at the impact of trauma on learning in the context of legal proceedings for immigrant women who had experienced domestic abuse; J. Horsman, Too Scared to Learn: Women, Violence and Education (Toronto: McGilligan Books, 1999) who documents a pan-Canadian study looking at women and the impact violence had on their abilities to learn to read.